MURUGESA NAICKER DIED Vs. GOVINDARAJA NATTAR

JUDGEMENT

(1.) FIRST defendant is the appellant. Aggrieved over the judgment and decree of the Sub Court, Cuddalore in A.S.No.167 of 1992, dated 15.9.1993, D-l has preferred this second appeal. Under the impugned judgment, the FIRST Appellate Court has confirmed the judgment of District Munsif Court, Cuddalore in O.S.No.202 of 1989, dated 11.3.1992) granting decree for specific performance in favour of the plaintiffs and directed the first defendant to execute the sale deed.

(2.) THE suit property relates to house site in T.S.No.1616 of Cuddalore Sudarsanam Street. Case of plaintiffs is that D-l has entered into an agreement of sale on 14.4.1980 for Rs.10,700. THE suit property was the subject matter of litigation in the earlier suit and proceedings in S.A.No.1175 of 1966. Possession was about to be taken through the process of Court. Sale consideration of Rs.3,000 paid as advance under the earlier agreement of sale dated 3.10.1971 was adjusted towards the sale consideration under the suit agreement. Further, on the date of agreement of sale, plaintiffs have paid a sum of Rs.1,000 to D-l besides another sum of Rs.700 received by D-l already; in all total sum of Rs.4,700 was received by D-l treated as advance for the sale consideration. Balance of Rs.6,000 alone remained to be paid. Under the agreement, D-l has agreed to execute the sale deed within one month from the date of taking delivery of possession through Court. D-l received further sum of Rs.2,001 on various dates in the year 1983. D-l in collusion with D-2 to D-4 seems to have taken delivery of the property outside the Court in the second week of February, 1989. Plaintiffs are always ready and willing to pay the balance of sale consideration and obtain the conveyance from the defendants. According to plaintiffs, a sum of Rs.3,999 alone is payable. Further the plaintiffs have expressed their willingness to pay the entire amount of balance sale consideration of Rs.6,000 if the Court finds that the sum of Rs.2,001 cannot be deducted from out of the sale consideration. Since the first defendant has not executed the sale deed and performed his part of the contract, plaintiffs have filed the suit for specific performance.

(3.) AGGRIEVED over the concurrent findings of the Courts below, appellant/D-1 has preferred this second appeal. The second appeal has been admitted on the following substantial question of law: "Whether the Courts below were right in decreeing the suit for specific performance in spite of the plaintiffs" failure to establish that they were always ready and willing to perform in full their part of the contracte"